Law Times

May 7, 2018

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Page 2 May 7, 2018 • Law TiMes says Iacobelli. "In most cases, it doesn't really matter because where the judge has found that the plaintiff has not met thresh- old, the jury verdict and the judge's finding of threshold are in unison because the award is nominal. In this case, it was al- most $90,000." Iacobelli noted that, in this case, the judge gave the jury a range of $20,000 to $50,000, and the jury rejected it, deciding on $75,000 in general damages in- stead. "You have to look at the jury verdict," says Iacobelli. "In order for the jury to reach the conclusion they reached, the jury had also pronounced a finding of fact and finding credibility to the evidence that was before them as well, and the judge was able [to] overrule those findings. What does it say about the right to a jury trial in this province?" LT expert whose evidence was ul- timately rejected by the court," said the ruling. Sudevi Mukherjee-Gothi, partner with Pallett Valo LLP in Toronto and head of the firm's insurance defence group, says the ruling gives more clarity to both insurance defence lawyers and personal injury lawyers. "Recently, there have been some cases that said sometimes you don't even have to call a treating doctor if you have peo- ple that can speak to the impact that it's had on the individual's life in terms of not being able to function to the same degree — a judge can take that into consid- eration," says Mukherjee-Gothi. Matthews says the original ruling stated that the plaintiff had returned to work after the accident and was able to do most of her job functions, with the exception of filing documents above shoulder height owing to a frozen shoulder, meaning that it was more likely to be a case of minimal impairment as op- posed to permanent and serious injury. Matthews also notes that, for at least a year post-accident, the plaintiff had been treated by a nurse practitioner who referred her to an orthopedic surgeon on top of her family physician. Before trial, the original ruling stated the plaintiff saw another orthopedic surgeon, Dr. Fern. Rose Leto, partner with Nein- stein LLP in Toronto, says that in the decision the court is assert- ing that treating physicians are in the best position to comment on the plaintiff 's condition. Leto says that when it comes down to the threshold, the treat- ing physician is in the best posi- tion to comment on the differ- ence in the person's life before and after the accident. She adds that, in this particular circum- stance, the court said that the plaintiff 's expert witness only saw the plaintiff for an hour and was an advocate. "They've only had a limited amount of interaction with the plaintiff and aren't in the best position to assess them when you take into [account] the pre- and post-accident state, and that's ultimately what the threshold is designed to look at," says Leto. Andrew Iacobelli of Iacobelli Law Firm PC in Toronto, who acted for the plaintiff in the mat- ter, says the decision shows the inherent danger of the thresh- old, given that the jury heard ev- idence for three weeks and, with its verdict, stated that the claim has merit. "The insurance company gets a second bite at the apple," the possibility for parties to get around limitation periods by later relying on extraneous evi- dence, which would be poten- tially unfair," says Allan, a lawyer with Vitulli Law Group in Ham- ilton, Ont. According to the appeal court decision, the case has its roots in Rodriguez' July 2003 deal to buy a property in Hamilton, for which he secured a mortgage from President's Choice Finan- cial for $174,000. When he sold the house a few months later, PCF asked Rodriguez' lawyer to hold back $145,000 from the sale proceeds to guarantee it was paid and the mortgage dis- charged, but the lawyer instead mistakenly sent a cheque for almost $180,000 to Rodriguez, which included the funds he was supposed to hold back. By the time the lawyer real- ized, Rodriguez told him he had already spent the funds. In Oc- tober 2005, LawPRO and FCT launched a claim against Rodri- guez, seeking to enforce their rights under the mortgage, but they omitted any details about the mistakenly sent cheque. They were granted default judg- ment in early 2006 for $192,000 after Rodriguez failed to defend the action. Rodriguez made his assign- ment in bankruptcy in 2009, but neither LawPRO nor FCT found out until after he was discharged, when Rodriguez' lawyer asked them to lift a writ of seizure and sale related to their default judg- ment against him. In 2017, the professional in- demnity and title insurers asked a judge to declare that the default judgment survived Rodriguez' bankruptcy under s. 178(1)(d), filing an affidavit in support that laid out the chain of events involving the real estate lawyer and the cheque. Ontario Superior Court Jus- tice Michael Gibson granted the application, relying on the 2016 decision of the B.C. Court of Ap- peal in Toth v. Lehman, to find that he was entitled to "look to the judgment, the evidence that would have been led had the ac- tion been defended, and that which has been led in this appli- cation," when assessing whether the debt should survive. However, the appeal court found that Gibson had erred in his reading of Toth, preferring to adopt the approach taken by the same court in an earlier 2015 de- cision, H.Y. Louie Co. Limited v. Bowick. LT NEWS Attempt to recover $200,000 Continued from page 1 Continued from page 1 'You have to look at the jury verdict' Thursday May 24, 2018 7 - 11 PM RockForLife_LT_Apr23_18.indd 1 2018-04-20 10:29 AM

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